on "Forgetting the First Amendment"
Aaron thinks I've "forgott[en] the First Amendment" in my criticism of Mr. Nader. I'm quite sure I haven't, as I try to explain below.
First, re "the First Amendment." There's a silly understanding of the what the "First Amendment" means that I don't think Aaron intends. That's the understanding, e.g., of SCO, which believes the GNU GPL is unconstitutional. That's just a confusion about what the constitution means. There could be no violation of "the First Amendment" by a private person telling another person not to run for President.
A more subtle point seems to me to be motivating Aaron -- that somehow it is inconsistent with free speech values to criticize someone's speech, or symbolic action, and so I am "forgetting the First Amendment" when I criticize Nader's "speech" in running for the Presidency.
But I don't believe in this endless-love view of free speech. Indeed, the whole reason we need a space for free speech is so some people can tell other people that their speech is wrong, or harmful, or both, (see, e.g., most of the comments to my own postings) and then the other people can decide whether to respect the views that were criticizing them. "Free speech" absolutely does not mean I have to like what you say. Nor does it mean I have to refrain from criticizing what you say. Such an idea insults, I believe, the very notion of free speech: which is to use argument to reach understanding, both about what to do, and about what to say.
So when someone, like the Nation, says to Ralph Nader -- "don't run because your running will do more harm than good" -- a response properly respectful of the value of free speech is not to criticize the critic (and didn't he see the irony in that?) but instead to explain why the claim is false. Does Nader really believe that his running would do more good than if he didn't? If he believes that, then he should use argument to show it. If he doesn't believe that his running will do more good than harm, but believes he should run anyway, then he should explain that too. Not "should" in the sense that he will be punished by the state if he doesn't (a violation of the first amendment, no doubt), but should in the sense that he owes it to others if he believes we owe him any respect.
| Permalink | technorati
Comments (20)
The inapplicability is not limited to telling people "their speech is wrong, or harmful, or both," one could also tell them to shut up! (they may not listen, of course) By slightly different reasoning: LL could delete this comment, ban me from this site and so on and there would still be still no First Amendment issue. Lawrence Lessig is not the government, and the First Amendment is not there to make him nice, patient or tolerant towards speech he dislikes.
We really need a good framework for someone to make the argument, and have it evaluated *on the merits* of:
"If I advocate this position, I am afraid I will subjected to torrents
of *undeserved abuse*, which I will be *unable* to counter to defend
myself, and thus will personally suffer to such an extent that fear of
this process has chilled and intimidated me from speaking out."
The above outcome may be 100.0% legal, First Amendment protected - but it's still worth examination.
There's some times this argument is reasonable, and some times it's not, and we need some way to be able to deal with it to separate the two.
The problem is this idea gets bogged down in "censorship" vs "only *government*" and "it's *my right* to criticize" and implicit accusations that the the above is being falsely claimed for sympathy, and the discussion becomes a whirlpool of people flaming past each other :-(.
Note, I believe Ralph Nader's use of this argument here is *not* reasonable, and is a case of it being used for sympathy.
Well said. If it were otherwise, only the first to speak would be able to lay out an argument. Everything else would be censorship.
An eloquent summary, and unlike me you were able to do it without profanity.
(well, secretly, I just like insulting Ralph Nader. I'm impulsive that way.)
Larry-
You have yet to prove Ralph did harm.
Cheers!
Ernie-
Proof is not a prerequisite of free speech.
Cheers!
Jer:
Proof is required if you want to convince rational listeners. Though...there's an awful lot of "free speech" going on in the US these days without proof and lots of dimwits to lap it up because it justifies their emotional preconceptions.
Cheers!
Interesting analysis I just found, trying to dig deeper into this:
Nader Did It
http://civic.net/civic-values.archive/200011/msg00159.html
"President Bush, do not run for re-election. You have caused great harm to this nation and to the world at large. Please do not run. I will not support you, and I will speak out against you every opportunity I can."
Is the above, according to Nader, censorship?
Thank you for reiterating the meaning of free speech, Professor Lessig.
Lessig: Why should a candidate ever have to justify doing no harm to your favorite candidate's standing in the race to run for office? Shouldn't your candidate have to outcompete whatever competition comes along? When do we begin to debate issues of the day based on the ideas the candidates bring and not rolling out the red carpet for your favorite candidate?
Why are people are leaving the Democratic Party for another party? Could it be that the Democrats aren't actually voting for bills that help us? Do most Democrats have anything better to offer than "We're not the Republicans" and how do they convince us of this by voting with them on major bills (giving Bush war-making power, voting for so-called "free trade" agreements, voting for the USA PATRIOT act, not supporting universal single-payer health care anymore)? And more focused on Nader, what exactly are the Democrats offering Nader in exchange for not running? What did the Democrats offer the Greens for not endorsing Nader in 2000?
I can follow your logic. Very well presented and stimulating, thanks. And I like the way you link critical thinking and free speech. However, I think the weak point in your reasoning is when you says that Nader withdrawal before the election "would have cost him nothing but would have gained the nation a great deal".
Like you I agree that the short-term impact of the attitude of Nader was not good (George Bush president). But what about the long-term impact? Is it obvious that the long-term impact will be bad?
For instance, what if the failure of Gore "caused" by Nader entice Democrats to be much more concerned about environmental issues and animal welfare in order to win back some green voters in the future, to avoid such a situation? It would be a good thing, right?
This is just an example, but I can think about numerous other possible consequences supporting the idea that on the long run, Nader attitude might be beneficial.
Your position will be really strong if you can argue convincingly that on the long run also, Nader did more harm than good by not withdrawing himself from the race. For now, you don't seem to take the long term consequences into account in your critic of Nader behavior.
However, I think it would be something quite hard to do (I mean, arguing convincingly on this).
Great link posted by Seth for the Nader apologists reading this forum. Hope you find the time to read it.
Greg and Seth-
The trouble with your facts are, they just aren't true. The abundance of polling data shows Bush winning the popular vote in a two-way race.
"The assertion that Nader's marginal vote hurt Gore is not borne out by polling data. When exit pollers asked voters how they would have voted in a two-way race, Bush actually won by a point. That was better than he did with Nader in the race."
--Al From, on the DLC's website
See also Tom Wise's article breaking down some of the numbers in the exit poll Seth sites.
Blame Nader if it makes you feel better, I suppose, but thinking that way won't get Democrats in the White House. The Demo's, in 2000, made a calculated decision to run toward the right. Not toward the center, toward the right. That's what cost Gore the election. More registered Democrats voted for Bush than voted for Nader.
This is a different campaign, and even if Nader entered it, he wouldn't necessarily draw the same support, but even if he did, choice in democracy is good. Yep, your side might lose if people have others to pick from who better represent them, but isn't that the point of voting?
Well, this is the first time ever I've found myself firmly disagreeing with Prof. Lessig. Yes the First Amendment is not somehow "violated" when someone says a candidate should not run for President. That much is true, as there's no government action, etc. But I take exception to the notion that a candidate who by way of his platform takes votes away from another candidate should be held responsible for that candidate's subsequent loss. Such a concept brings "pragmatics" into political theory in such an extreme and nonsensical way that even Judge Posner would have nothing to do with it.
Yes, in a two party system in a close election, a third candidate who earns more votes than the number of votes separating the winner from the 2nd place finisher (i.e. Gore) could in retrospect be said to have made a difference, at least mathematically. But for Professor Lessig to claim that, somehow, that 3rd party candidate should be held personally liable for political negligence when the winner of the election turns out to be a horrible president (e.g. Bush) is insane.
I assume Prof. Lessig wouldn't actually be in favor of Nader being personally liable for a lump sum of money to offset the economic harm the Bush Administration has caused the country, if such a number could be quantified. But when he starts comparing Nader's liability to that of a 402A defendant who put a defective product into the stream of commerce, I have to wonder.
This is getting a bit off topic, but bruce said, "I take exception to the notion that a candidate who by way of his platform takes votes away from another candidate should be held responsible for that candidate’s subsequent loss."
I have to chime in and agree. Even though I am a registered Democrat, the party isn't going to force me to vote for their chosen candidate at gunpoint. I am free to choose whether or not I want to vote for the candidate they feel best represents the party platform.
If my party's chosen candidate does not make a good case for his election and I vote for someone else, is that the fault of the party's candidate for not being appealing enough, or of the other candidate for being too appealing?
I'm not crazy about criticizing the opinion of Professor Lessig, but I just can't agree on the fundamentals here.
I believe that to agree with Professor Lessig is to surrender to the idea that politics in the United States must, by way of history, be two-dimensional and that to buck that norm is somehow wrong or undemocratic. Perhaps I'm naive or overly ideological, but I'd like to think that we're now empowered (via the Internet...and no, I never quite got on board the Dean wagon although I did admire Trippi's attempt) to make politics three-dimensional. This is no new concept and it's probably going to take a decade to become the norm (assuming the powers that be don't lock down the Net in the meantime).
I work in the IT field and I don't try to convince my colleagues about how they should vote. My advice is simple: Construct a spreadsheet with the candidates (all candidates, all parties), the issues you deem important, and the scores you ascribe to those candidates. Should I ever find the time, I intend to construct a website that will automate the process.
The effects of such an effort are twofold: 1) It will encourage people to research the issues rather than folding into one party line and 2) It will help people realize what benefits them most outside of party lines and thus (hopefully) recreate and solidify political diversity in this country.
There are already a number of websites that have been created to plot one's political beliefs on a Cartesian graph. I think it would be interesting to do the same within the intervals of the current political climate.
In conclusion, I can understand and sympathize with Professor Lessig's frustration regarding Ralph Nader but I believe that his criticism is misplaced. A healthy republic should not be reliant on two parties; it should, instead, embrace as many viewpoints as necessary to accurately represent the population. Limiting the field via legislation, regulation, or public vilification runs contra to my understanding of the intentions of our forefathers. Polarization is undemocratic, IMHO.
--Jason
Instead of attacking Ralph Nader: Lets attack a system that does not allow third parties a chance to share power proportional to the population they represent.
AUTOMATIC RUN OFFS & (AND ADDED CHANGE COULD BE ONLY FIRST ROUND WINNERS GET TO RUN FOR RE-ELECTION THE FOLLOWING TERM - REDUCING THE NUMBER OF INCUMBENTS MONOPOLIZING POWER)
These two changes would be the best combination of two changes in our election system would be automatic run-offs AND any election not one on the first round of the run-off - that office holder can not run for that office the next term.
BENEFITs: this would provide features of term limits, encourage third parties, encourage participation even against stronge incombents. Also, will encourage candidates to attempt to respresent the broadest constituency possible. Would encourage broader news coverage of third party candidates — because it would make each election a potential point of significant change.
Convert the presidential electorial college back to the per congressional district basis. This way a whole congressional district's choices would not be negated and promote third party competion AND PROBABLY NEWS COVERAGE OF THIRD PARTIES PRESIDENTUAL CANDIDATES WOULD INCREASE BECAUSE THEY WOULD CHANGE THE DYNAMICS SIGNIFICANTLY.
The inapplicability is not limited to telling people "their speech is wrong, or harmful, or both," one could also tell them to shut up! (they may not listen, of course) By slightly different reasoning: LL could delete this comment, ban me from this site and so on and there would still be still no First Amendment issue. Lawrence Lessig is not the government, and the First Amendment is not there to make him nice, patient or tolerant towards speech he dislikes.
Rolex GMT watchesmade with swiss movement ! so cheap and high quality ! accept paypal ,and 14 days money back without reason !